How Australian lawmakers have used 9/11 to threaten civil liberties

For a long time, Australia was known as a country with a high level of social and political freedom. Even though the history of the land lies in colonialism — with the arrival of convicts and settlers from Britain in 1788 who took over the land from Indigenous peoples — Australia was noted for some progressive social developments in the 1800s, including introducing the secret ballot, votes for women, and the eight-hour workday. 

This changed after the 9/11 terrorist attacks in the U.S. The Australian government has since passed 92 anti-terror laws, the most of any comparable country, despite the absence of significant terrorist attacks on Australian soil.

Some of these laws involve reductions in civil liberties, including freedom of speech. Each of these laws was passed with support from the two main political parties: the Australian Labor Party and the Liberal-National-Party Coalition. For decades, one or the other of these parties has formed the government but, in any case, whichever major party is in opposition also supports the laws.

Politicians justify the laws as necessary for dealing with terrorism, or sometimes pedophile rings or organized crime. Because of secrecy provisions, it’s very hard to find out how often the laws have been used.

There are two aspects to the increasing threats to freedom in Australia. The first is the introduction of laws (and amendments to existing ones) with extensive powers that can be used against dissent. It is almost impossible to know how they’re being used due to extreme secrecy provisions and heavy penalties for disclosure. The second aspect is overt attacks on whistleblowers and journalists. These attacks show that anyone seeking to expose government crimes or secrets, or to challenge government agendas, is open to persecution.

Anti-terrorism laws open to abuse

Here are some of the laws that have triggered the greatest concern among defenders of civil liberties.

• Preventative detention: Under federal, state and territory laws, all passed after 9/11, people can be detained by a security agency without being charged or even suspected of terrorism offenses. The grounds for detention can be kept secret and there is no effective way to challenge the detention. The penalty for revealing that you or someone else has been detained is up to five years in prison.

• Metadata retention: Under the 2015 amendments to the Telecommunications (Interception and Access) Act, companies are required to keep records of every call made, including the numbers of the caller and receiver and when the call started and ended (but not the content of the call). Metadata are kept for two years and can be accessed by security agencies.

• Encryption breaking: Under the 2018 amendments to Telecommunications Act, technology companies are required to provide, on demand, access to encrypted communications.

• National security whistleblowing and journalism: Under the 2018 amendments to the 1914 Crimes Act, if anyone working in national security reveals anything — abuse, corruption, human rights violations — to an outsider, they can go to prison for up to 10 years. If a journalist reports on a national security matter, they also can go to prison for 10 years. “National security” is defined broadly to include anything affecting Australian politics and economics.

• Identify and detect: A 2021 amendment to the Surveillance Devices Act 2004 gives the Australian Federal Police, or AFP, the power to steal or gain access to anyone’s computer and to delete, change or add material. The AFP can access people’s social media accounts, with similar power. The AFP can order any person or organization to provide this access, with penalties for noncooperation of years in prison. Revealing an identify-and-detect operation can lead to prison.

There are several ways in which these anti-terrorism laws could be misused. Imagine that senior national security personnel are involved in extortion or have injured members of the public through secret operations, or any number of other crimes. If an insider informs an Australian journalist about this, and this is then reported in the news media, it is possible for the AFP to use metadata to identify every single phone number used in contacting the journalist and to break any encryption used. And there is an actual precedent to this: the AFP has revealed they had accessed the metadata of journalists 58 times in a year.

These laws allow the police to access the whistleblower’s phone, computer and social media accounts, delete information about national security crimes, and add new material to frame the whistleblower for crimes they didn’t commit.

Many journalists now recommend sources to contact them only through secure online platforms, or meet face-to-face. Even if the laws are not used, they are already having a chilling effect on Australian journalism.

Overt assaults on free speech

The second aspect of the government’s threats to freedom is direct attacks on whistleblowers and journalists. And there are several cases that have caused an uproar in Australia.

Having served in the Australian military, David McBride reported on alleged war crimes by Australian soldiers in Afghanistan. Instead of taking heed to his report, the government charged him with revealing confidential information and took him to court. The case is ongoing. So far, no soldier allegedly involved in war crimes has been charged.

Richard Boyle revealed unethical debt recovery practices in the Australian Tax Office, practices that have since been stopped. However, he has been charged with numerous offenses that could lead to years in prison.

In 2004, the governments of Australia and East Timor were negotiating a seabed treaty. Australian spy agencies bugged East Timorese government offices so that Australian negotiators could gain an advantage. A member of the bugging team, later referred to as Witness K, revealed the government’s criminal action. More than a decade later, after a new treaty was signed, the Australian government charged Witness K with breaking official secrets. The government also charged K’s lawyer Bernard Collaery, and sought to keep as much of the evidence and trial as secret as possible.

In each of these cases, the individuals or organizations committing crimes were not prosecuted. Instead, the Australian government prosecuted individuals who revealed the crimes.

In 2019, the AFP raided the home of journalist Annika Smethurst over a story she had reported the previous year about plans for government surveillance. The AFP also raided the headquarters of the Australian Broadcasting Corporation, the country’s major government-funded media organization, treating journalists as criminals for doing their jobs reporting on government activities.

These raids triggered an unprecedented alliance of Australian media organizations, Your Right to Know, to oppose government interference with the media.

How outsiders can help

Within Australia, some people resist oppressive laws, but there are several challenges. Major media organizations are careful not to break the law, which means many abuses of power are not reported. Insiders are afraid to speak out because of heavy penalties.

However, people outside Australia are relatively protected because they are not subject to Australian laws. Also, outsiders sometimes have more credibility within Australia because they have nothing personal at stake. Here are a few possibilities for action in support of Australian civil liberties:

• Provide personal support to targets of attack, for example Bernard Collaery and the journalists whose offices were raided by the police. Provide personal support to potentialtargets of attack, for example independent media groups that expose corruption in Australia. Ask them what would be helpful, such as advice, information and networks.

• Publicize what’s happening in Australia. When people outside Australia raise concerns, this often has an impact. The Australian government values its international reputation, as this affects investment, tourism, sports and much else. Australian politicians need to know that laws compromising civil liberties send a bad signal to the world.

• Post information that cannot be safely published in Australia. When Australian media are afraid to run stories about corruption in national security organizations, publishing such stories outside the country can help oppose abuses. It also shows harmful effects of the laws.

• Help organize a civil disobedience action to challenge anti-free-speech laws. This might involve organizing a law-breaking petition signed by Australians on the understanding that it will go public only when a target number have signed, perhaps 100 or 1,000. Organizing such a petition would be a delicate activity, safest for a person or group outside the country.

• Be a conduit for an Australian insider who wants to speak anonymously. Imagine someone working in national security who wants to provide commentary about what’s going on inside. With a secure channel, the commentary could be published on a publication outside the country. Doing this would be a sensitive operation, potentially open to disinformation and manipulation. Such a commentary — a single post or a series — would reveal information and show how difficult it is for Australians to speak out in the public interest.

Defending civil liberties is vitally important, as backward steps are possible at any time. Resistance to attacks on free speech is needed in Australia — and beyond.